Case Document

100%Judiciary

HCAL 799/2019

[2023] HKCFI 1266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 799 of 2019

BETWEEN
	Nguyen Thanh Tung	Applicant
	and
	Torture Claims Appeal Board/	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of documents only; or

consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 14 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Vietnam. He entered Hong Kong illegally on 22 March 2017 and surrendered himself to the Immigration Department on the next day. On the date of surrender, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor, Tran Long, as he failed to repay the loan.

5.In short, the applicant borrowed a sum from Tran for his mother’s kidney transplant surgery in 2016. Initially, he was able to repay the interests. However, as a taxi driver, he knew that he would never be able to settle the loan. As a result, he first escaped to Ho Chi Minh City. However, he was located by the creditor, and was assaulted and threatened. Later, he escaped to his friend’s place in Vung Tau City. One day, his friend’s place was poured with feces and “no way to escape” was written on the door. Out of fear, he left his friend’s place and eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 23 July 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity of past ill-treatments indicated an unlikelihood of future risk of harm [12.1]; (ii) Tran did not show real intention to cause harm or even kill him [12.2]; (iii) there was no evidence that Tran could locate him everywhere [12.3]; (iv) his claimed fear was based on hearsay information [12.4]; (v) state protection would be available to him [13]-[16]; and (vi) internal relocation was a viable option [17].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 4 January 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [6].

9.Having considered the evidence, the Board concluded that the applicant’s claim was unsubstantiated. It accepted the applicant’s claim that there was an outstanding loan and he had unpleasant encounters with Tran [55]. However, it also noted that the applicant was only directly involved in one incident with the others basing on hearsay information. Meanwhile, the applicant did not suffer any serious injuries in the incident [56]. Even taking his claim to the highest, the loan dispute was a private dispute without state involvement [57]-[61]. Besides, state protection would be available to the applicant [68]-[71].

10.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 22 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant said his life will be in danger if he returns to Vietnam because of his insolvency and his creditor and his men will inflict more serious harm or even kill him. They will not spare him.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.The Board had assessed his evidence and, for the reasons it had given, found that the applicant is not subjected to any real risk as he alleged if he returns to Vietnam as state protection and internal relocation are available options for him. The reasons stated in paragraph 12, supra are not valid to challenge the Board’s Decision.

17.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 16^th day of May 2023

(M.O. WONG)(Ms)
for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 16/5/2023 Nguyen Thanh Tung Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 16/5/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 12762/18/8/32/V2154 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2386/18 (formerly RBCZ 10828/17(PSO)(T6I123) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)